Thoughts from the interface of science, religion, law and culture

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

EVENTS

Conservative Legal Scholars Slam VRA Ruling

Two of the most prominent conservative legal scholars in the country, including one who has long been on a short list of potential Supreme Court nominees for Republican presidents, slammed the court’s ruling in the Voting Rights Act case in interviews with Nina Totenberg.

The decision cutting the heart out of the Voting Rights Act was also 5-to-4, but this time along more familiar lines, with Kennedy joining the court’s most conservative four justices. Chief Justice Roberts wrote the decision, siding with Shelby County, Ala., which challenged the law as unconstitutional. The Voting Rights Act’s formula determining which states are covered, he said, was based on old data and therefore treated the southern states unfairly and unequally.

Although the decision was hailed by many political conservatives, its reviews from academic and judicial conservatives were considerably less admiring.

Harvard Law professor Charles Fried, a former state Supreme Court justice who served as the Reagan administration’s advocate in the Supreme Court, thought the court’s decision was just wrong.

“Because we’re not there yet,” he says. “We’re not there yet, and the facts on the ground in Shelby County itself showed that.”

Stanford’s McConnell says the decision’s reasoning is just “made up.”

“There’s no requirement in the Constitution to treat all states the same,” he said. “It might be an attractive principle, but it doesn’t seem to be in the Constitution.”

McConnell is Michael McConnell, a former judge on the 10th Circuit Court of Appeals who has long been considered a front runner for a Republican Supreme Court nomination. He retired a couple years ago to go back to academia.

Comments

At Lawyers, Guns, & Money has been doing thorough job of debunking apologists for the gutting of the VRA. For the most part, according to him, they read a principle (equal treatment or equal sovereignty of the states) that isn’t there, and often fail to come up with an actual part of your constitution that the VRA violated.

See, there are still conservatives who actually try to think through their positions and who don’t think every single thing any given liberal thinks is not only wrong but evil. Hell, some of them aren’t even racists. While I will USUALLY disagree with such conservatives, there will be things we agree on, and I can respect them even if (in my opinion) they are wrong.

They should have extended the VRA for all states instead of getting rid of it. But of course that would hurt those poor republicans and their dwindling constituency. I wonder how well they would really do without gerrymandering.

Repubs can’t reauthorize the VRA – more voters means less republicans. Their only strategy is to get Jim Crow back and only let ‘good republicans’ vote — luckily (for the democracy hating repubs) the easiest way for them to tell is by having the electorate color coded and now the law that would stop them has been effectively killed.

Can we really separate out unequal treatment of the states from unequal treatment of the people living in those states?

That was my first thought as well. But after some consideration I have to say, yes. The states make their own laws. So there is an inherent inequality between them. It is appropriate for the federal government to address that imbalance in matters of national interest and justice.

Chiroptera“Wasn’t there a Star Trek episode where that caused a Tea Partier to shut down completely?”
No. The teabagger said “You’re a conservative in name only”, picked up his “Death Panels!” sign and scooted to the next protest.

Abby Normal“It is appropriate for the federal government to address that imbalance in matters of national interest and justice.”
No. The federal government is supposed to Block Grant rights, with few rules and little oversight, to the individual states to parcel out as they see fit. It’s right there in the Constitution.

Can we really separate out unequal treatment of the states from unequal treatment of the people living in those states?

Yes, we can. If one state has 8 hour lines for black voters and another state has 0 hour lines for black voters, there is a clear, obvious, and rational reason for treating them differently. Wouldn’t you say?

“Unequal” isn’t the problem to be avoided. Even at the individual level, we treat a person driving 5mph over the speed limit unequally from someone driving 50mph over it. “Arbitrarily unequal” is the problem to be avoided. I.e., treating two 5mph speeders differently because of skin color, or treating a state differently based solely on latitude. But there was very little that was arbitrary about the proscriptions in the VRA. It was based on empirically observed behaviors that were rationally connected to the question of adherence to law (just like the speeding example).

But the way the voting rights act was set up, it helped ensure equality in some states and failed to ensure equality in others. And the part that was thrown out was based on 50-year old info. (It was a bad decision, I think, on the merits of this case, as the county that was suing was one that has consistently had problems. In other words, the new data there seem to be the same as the old.) But are you going to tell me that voter suppression efforts in, say, Ohio aren’t worth the scrutiny that the same efforts would be in Georgia? I understand the argument that we need to treat states differently because they differ in their behavior, but that’s not really what was going on these days. Clearly the ideal would be something along the lines karmacat suggested, although I think I’d prefer a streamlined method for citizen challenges rather than a pre-clearance set up that we (sort of) have now. And yes, I realize both changes would have to go through Congress, and what the chances of that are.

(It was a bad decision, I think, on the merits of this case, as the county that was suing was one that has consistently had problems. In other words, the new data there seem to be the same as the old.) But are you going to tell me that voter suppression efforts in, say, Ohio aren’t worth the scrutiny that the same efforts would be in Georgia?

I’m not going to tell you that, because that’s not what you originally asked . You asked if unequal treatment of states could be separated from unequal treatment of voters, and several people gave you well-reasoned ‘yes’ responses (as in: yes, we can treat states differently as a means of ensuring voters are treated equally).

Now if your Question #2 is: should voter suppression efforts in Ohio get a pass because its not a Section 4 state (like Georgia)? Then my answer is: no, it should not get a pass. Things that would be struck down in Georgia as discriminatory should also be struck down in Ohio as discriminatory. It may be a matter of degree as to how many shennanigans a state tries before the feds “pull their licence” (i.e, require federal preclearance). I have no problem with the states that pull less shennanigans not being required to preclear everything. We don’t pull every speeder’s licenses, just the really bad ones. But, regardless of state, if they do something that breaks Section 2, that should be struck down.